In my last blog [George W. Bush’s Criminal Legacy – Part I] I laid out the case charging that the invasion of Iraq under former President George W. Bush was illegal under both domestic and international law, and that Bush along with his top advisors were liable to charges of war crimes.

I listed actions taken in other nations that give substance to these charges: In September 2005 a German court declared that the Iraq war violated international law. In March 2007 a Spanish judge called for the architects of the Iraq invasion to be tried for war crimes.

In October 2011 when Bush attended an economic summit in British Columbia, Amnesty International submitted a detailed legal brief to Canada’s Attorney General arguing that

Canada is required by its international obligations to arrest and prosecute former president Bush given his responsibility for crimes under international law including torture.

Bush cancelled an earlier visit to Switzerland in February 2011, after facing similar public calls for his arrest.

These actions all took place outside the United States and are generally regarded as unenforceable within American borders.

However, I noted at the end of that blog that in August 2013 a class action civil suit was filed against George W. Bush and five officials of his administration within the United States – in the U. S. District Court of the Northern District of California, which is currently slowly proceeding to trial. That suit is the focus of the present blog.

The lawsuit being discussed was filed by Inder Comar of Comar Law based in San Francisco on behalf of the lead plaintiff in the case, Sundus Shaker Saleh an Iraqi mother of three who is now a refugee in Jordan, “and those similarly situated.”

The defendants named in the case are former President George W. Bush, former Vice-President Richard Cheney, former Secretary of State Colin Powell, former Secretary of Defense Donald Rumsfeld, former National Security Advisor Condoleezza Rice, and former Deputy Secretary of Defense Paul Wolfowitz.

Citing the precedent laid down at the post-World War II Nuremburg trials, the suit specifically charges that the

Defendants violated the rule of Nuremberg by attacking another country without legal justification, and specifically, by committing the crime of aggression against Iraq on March 19, 2003. Defendants violated the rule of Nuremberg by using fraudulent and untrue statements in an attempt to convince diplomats, world leaders and the American public that Iraq posed a threat to the United States and/or that Iraq was in league with al-Qaeda, when neither of these things was true.

Furthermore, the suit charges that the

Defendants violated the Kellogg-Briand Pact, a treaty signed in 1928, to which the United States is still a signatory. The Kellogg-Briand Pact requires signatory nations such as the United States to “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” The Kellogg-Briand Pact requires signatory nations such as the United States to resolve all disputes or conflicts through “pacific means.” As a Treaty of the United States, the United States Constitution incorporates this principle into its law under Article VI, clause 2, which declares “treaties made . . . to be the supreme law of the land.”

And that the

Defendants violated the United Nations Charter by planning to commit the crime of aggression. Article II, Section 4 of the United Nations Charter requires countries to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nation.” As a Treaty of the United States, the United States Constitution incorporates this principle into its law under Article VI, clause 2, which declares “treaties made . . . to be the supreme law of the land.”

It is quite possible that the case will not succeed in the courts. The defendants may argue that they were acting properly under their “scope of employment” with the United States government.

Paul Stephan, who teaches law at the University of West Virginia and has served as a consultant to the Department of State on international law, states that

The Westfall Act of 1988 permits the United States as an entity to substitute itself in for individuals who were acting in their “scope of employment

and

it’s difficult to sue a U.S. employee acting under the “scope of employment.”

Even if no culpability is declared, the charges that are documented in the lawsuit are chilling. You can read the entire 27 page legal complaint here. It portrays a deliberate strategy to intentionally deceive the American public and to operate outside the scope of American and international law in launching an invasion against a foreign nation.

Details of the Lawsuit

Specifically, the suit charges that Cheney, Rumsfeld and Wolfowitz were all members of “The Project for the New American Century” [or PNAC] formed in 1997, which over the next three years produced a number of documents advocating the military overthrow of Saddam Hussein. [5; footnotes are as they appear in the lawsuit; the reader is encouraged to check the information sources detailed in the links] Rumsfeld and Wolfowitz actively promoted this objective in Congress. [6, 7]

President Bush received a briefing from the CIA on August 6, 2001 warning of Bin Laden’s determination to mount a major strike against the U.S. [13] However, Richard A. Clarke, the former National Coordinator for Security, Infrastructure Protection and Counter-terrorism, later reported that the Bush administration was so focused on Iraq at that time that it failed to heed these warnings about an imminent attack from al-Qaeda.

The day after the 9/11 attacks, Wolfowitz and Rumsfeld “openly pushed for war against Iraq – despite the fact that the 9/11 hijackers were Saudi Arabian and had been based out of Afghanistan.”

Clarke reports an astonishing conversation that took place at the White House that day. President Bush approached him saying, “See if Saddam did this. See if he’s linked in any way.” When Clark replied, “But, Mr. President, Al Qaeda did this,” Bush responded, “I know, I know, but – see if Saddam was involved. Just look. I want to know any shred-” Clarke replied, “But you know, we have looked several times for state sponsorship of Al Qaeda and not found any real linkages to Iraq. Iran plays a little, as does Pakistan, and Saudi Arabia, Yemen.” “Look into Iraq, Saddam,” Bush repeated. [10]

Clarke concludes that Wolfowitz, Rumsfeld and Bush all sought to use 9/11 as a pretext to attack Iraq. [9]

In July 2002 the British government learned that the Bush administration was planning to attack Iraq and was “fixing” its intelligence around that policy. [14]

The suit charges that

In August 2002, the White House established a group called the White House Iraq Group (“WHIG”), the purpose of which was to convince the American public into supporting a war against Iraq. Defendant RICE was a member of WHIG, along with Karl Rove, I. Lewis (“Scooter”) Libby, and other high-ranking Bush Administration officials.

As reported by the New York Times, the centerpiece of their strategy was to use Mr. Bush’s upcoming speech on September 11 “to help move Americans towards support of action against Iraq, which could come early next year.” [16] Leading up to this event, on September 8, 2002 National Security Advisor Condoleezza Rice asserted on CNN’s Late Edition that Saddam Hussein was “actively pursuing a nuclear weapon,” and warned that “we don’t want the smoking gun to be a mushroom cloud.”

Former press secretary Scott McClellan would later state that Bush’s staff actively engaged in a “political propaganda campaign” aimed at “manipulating sources of public opinion.” [18]

On October 7, 2002 President Bush told the American people that

Iraq and al Qaeda have had high-level contacts that go back a decade. Some al Qaeda leaders who fled Afghanistan went to Iraq …who have been associated with planning for chemical and biological attacks. We’ve learned that Iraq has trained as Qaeda members in bomb-making and poisons and deadly gases. [19]

In the same speech Bush claimed that Saddam Hussein had a group of “nuclear mujahaideen – his nuclear holy warriors.” A week later Bush repeated his charge that Saddam Hussein “has had connections with al Qaeda,” adding that, “This is a man who, in my judgment, would like to use al Qaeda as a forward army.” [20]

Bush made these statements despite the fact that “ten days after the 9/11 attacks, he was told in his daily brief (“PDB”) from the CIA that there was no evidence linking Iraq to 9/11 and scant evidence that Iraq had any collaborative ties with al Qaeda.” [21] In addition, “A Defense Intelligence Agency document from February 2002 confirmed that the source of the intelligence linking Iraq to al Qaeda was a likely fabricator and “intentionally misleading” his interrogators.” [22] [This has been reported on elsewhere in detail]

In February 2003, Colin Powell gave a speech to the United Nations Security Council that was considered to be crucial for winning approval for military action against Iraq. In his speech, Powell alleged that Iraq “harbors a deadly terrorist network headed by Abu Musab Al-Zarqawi, an associated collaborator of Osama bin Laden and his al-Qaeda lieutenants,” that Saddam Hussein was “more willing to assist al-Qaida after the 1998 bombings of [US] embassies in Kenya and Tanzania,” and that, “From the late 1990s until 2001, the Iraqi Embassy in Pakistan played the role of liaison to the Al Qaeda organization.” [26] All of this was untrue. Powell later admitted, “I have never seen a connection [between Iraq and al-Qaeda. … I’d never seen evidence to suggest there was one.”

On March 18, 2003, acting on the orders of President Bush, the United States invaded Iraq. The lawsuit against George W. Bush and his co-defendants notes that the

Defendants failed to secure United Nations authorization for the war. Article 39 of the United Nations Charter requires the United Nations Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.”

Furthermore,

On September 14, 2004, United Nations Secretary General Kofi Annan stated, “I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal.” [28]

Based on the evidence contained in the suit, the plaintiff calls

1. For an order finding that Defendants planned and committed the crime of aggression.

2. For an award of compensatory damages against Defendants in an amount sufficient to compensate Plaintiff and all members of the Iraq Civilian Victims’ Class for damages they sustained as a result of Defendants’ illegal actions in planning and mounting a war of aggression against Iraq.

Should the defendants’ assets not be sufficient to cover these damages, the suit asks that the defendants

set up, manage and obtain other funding at their expense a restitution fund to provide for proper compensation to any and all Iraqi civilians who were damaged because of Defendants’ commission of the crime of aggression against Iraq.

It should be interesting to follow this case as it proceeds through the courts to see what the final determination will be.

On December 9th the Senate Intelligence Committee released its report on the torture of detainees by the CIA during the Bush administration. Reaction to the report has been swift and harsh. CIA officials and some Bush era appointees have tried to discredit the report, while others have demanded that those responsible for these crimes be brought to justice.

As disturbing as the findings in the Senate report are, Reed Brody of Human Rights Watchnotes that the scope of the report is actually quite limited. It only

deals with one aspect of one part of the detainee mistreatment in the war on terror [namely,] CIA prisoners held in black sites. … [I]t doesn’t talk about what the Pentagon was doing. It doesn’t talk about the programs approved by Donald Rumsfeld. And … it tends to kind of let off the hook all those people above who authorized these programs.

In my last post [Taking Action Against Torture] I laid out the grounds for pursuing criminal charges not only against George Tenet, the CIA Director during the Bush administration (who oversaw these torture practices) as well as those agents under his command, but also former Defense Secretary Donald Rumsfeld (who approved these illegal interrogation methods), former Vice-President Dick Cheney (who was the driving force behind these illegal detention policies), and President George W. Bush (who authorize the CIA secret detention program and had ultimate authority over its operations). [See link]

But even this does not address the full scope of the illegal and criminal actions carried out on the international stage during the Bush administration.

The Case for War Crimes

In March 2003 the United States launched its invasion of Iraq to overthrow the brutal regime of Saddam Hussein. President George W. Bush explained at the time that this was necessary since Saddam possessed weapons of mass destruction and was known to be in league with al-Qaida.

His statements, and those of other top White House officials who orchestrated the invasion of Iraq, were later revealed to be false. President Bush lied to the American people. More importantly, it has been argued that his actions not only violated the U.N. Charter that forbids wars of aggression, but violated U. S. law as well.

As former federal prosecutor Elizabeth De La Vega wrote in a cover story for the Nation magazine in October 2005 detailing this deception:

The evidence shows, then, that from early 2002 to at least March 2003, the President and his aides conspired to defraud the United States by intentionally misrepresenting intelligence about Iraq to persuade Congress to authorize force, thereby interfering with Congress’s lawful functions of overseeing foreign affairs and making appropriations, all of which violates Title 18, United States Code, Section 371.

Appeals were made for the Justice Department to appoint a special prosecutor to investigate the administration’s involvement in this deception much like the investigation into president Nixon’s cover-up of the Watergate break-in. But no action was taken. Some called for President Bush to be impeached, but nothing came of this during Bush’s remaining time in office.

Actions were taken on the international stage, however. In September 2005 a German court declared that the Iraq war violated international law. In March 2007 a Spanish judge called for the architects of the Iraq invasion to be tried for war crimes.

In October 2011 when then ex-President Bush attended an economic summit in British Columbia, Amnesty International submitted an extensive legal brief to Canada’s Attorney General arguing that

Canada is required by its international obligations to arrest and prosecute former president Bush given his responsibility for crimes under international law including torture.

Although the Canadian government declined to take such action, the National Post (Canada’s national conservative newspaper) reported that

Bush cancelled a visit to Switzerland in February, after facing similar public calls for his arrest.

Lest anyone take Amnesty International’s charges lightly, it should be noted that its charges are well documented.

Amnesty’s case, outlined in its 1,000-page memorandum, relies on the public record, U.S. documents obtained through access to information requests, Bush’s own memoir and a Red Cross report critical of the U.S.’s war on terror policies.

In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (the Kuala Lumpur War Crimes Tribunal, or KLWCT), consisting of five judges with judicial and academic backgrounds, reached a unanimous verdict [in November 2011] that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity and genocide as a result of their roles in the Iraq War.

And finally,

In January 2014 a devastating 250-page dossier, detailing allegations of beatings, electrocution, mock executions and sexual assault, was presented to the International Criminal Court (ICC) … . This formal complaint to the ICC is the culmination of several years’ work by Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human Rights (ECCHR). It calls for an investigation into the alleged war crimes, under Article 15 of the Rome Statute.

All of the actions reported above have taken place outside the United States and, many would argue, are unenforceable within American borders.

However, in August 2013 a domestic class action civil suit was filed against George W. Bush and five officials of his administration that is proceeding to trial. I will provide a detailed examination of that case of my next blog.

The crisis in Iraq continues to deepen. This week an organized militant group calling itself ISIS (short for the Islamic State of Iraq and al-Sham) overran Mosul, Iraq’s second largest city. The group controls most of the surrounding province and ISIS forces have advanced toward Baghdad where they have been responsible for a series of deadly explosions.

ISIS is a radical Sunni organization that split earlier this year from al-Qaida and is seen as even more brutal and militant than its parent group. On Wednesday ISIS took control of Iraq’s largest oil refinery, and on Friday we learned that it was occupying the site of a former chemical weapons facility 46 miles northeast of Baghdad that contains a large supply of lethal chemicals.

Historical Context

To understand the present political situation in Iraq it is necessary to know some of its history.

Iraq lies between Syria and Iran at the head of the Persian Gulf. The national boundaries carved out by the victorious European powers in 1920 shortly after the end of the First World War artificially divided this territory without regard to traditional tribal and religious loyalties. Land disputes and religious rivalries have been problems in this region ever since.

In 1979 the secular government of Iran was overthrown in a populist revolutionary movement that put control of the country in the hands of conservative Shi’ite religious leaders. The Shi’a are a minority within the Muslim world (forming about 10-15% of the total Muslim population), but they are the dominant group in Iran.

In neighboring Iraq the Shi’a also form the majority (over 60%), with the Sunnis, who form 85-90% of the Muslim population worldwide, being the minority (only 20%). In 1968 the revolutionary Sunni-based Ba’ath Party took control of Iraq in a coup and began filling government positions with Sunni appointees. Throughout the years of Ba’ath rule, both the majority Shi’a and the minority Kurdish population of northern Iraq were harshly suppressed.

Saddam Husain took power as head of the Ba’ath Party in Iraq in 1979. The following year he invaded Iran – partially out of fear that the Iranian Revolution might inspire a similar revolt among Iraq’s suppressed Shi’a majority, and partially out of a desire to replace Iran as the dominant power in the Persian Gulf.

Iran fougnt back and regained most of its lost territory by 1982. After that Iraq was put on the defensive. In 1983 the Kurds of northern Iraq rebelled against the Husain government and attempted to form their own autonomous country.

The conflict went on for 8 long years at immense cost to all sides. It is estimated that half a million Iraqi and Iranian soldiers died in the conflict along with an equivalent number of civilians. During the war Iraqi forces used mustard gas against Iranian soldiers and sarin gas against Kurdish civilians – both chemicals are considered to be “weapons of mass destruction.” Hostilities were finally ended through a UN-brokered cease fire in 1988 that all sides accepted.

The United States played only an indirect role in the First Gulf War, mainly seeking to protect its economic interests in the region and to ensure the safety of oil shipments in the Persian Gulf. American resentment of Iran was still high following the lengthy holding of American hostages at the at the American embassy in Tehran in 1979-80, and so the United States favored Iraq during the conflict.

In 1982 the U.S. removed Iraq from its list of State Sponsors of Terrorism (created in 1979 after the Iranian Revolution). This was despite its full knowledge of Iraq’s use of chemical weapons in the war. It established diplomatic ties with the Husain regime, and began massive arms sales to Iraq.

Although Iran remained on the official list of State Sponsors of Terrorism, the Reagan administration surreptitiously gave military support to Iran as well. Anti-tank and anti-aircraft weaponry were taken from Pentagon warehouses and sold to the Khomeini regime in Iran in exchange for promises that Shi’a militiamen in Lebanon would release their American hostages. The details of the Iran-Contra affair only came to light long afterward.

Operation Desert Storm

American support of Iraq abruptly reversed course in 1990. In August of that year Saddam Husain invaded Kuwait, accusing it of exceeding its OPEC-set quotas of oil production. A few days later he declared Kuwait to be Iraq’s 19th province and installed his cousin as its military-governor. U.S. President George H. W. Bush termed the invasion a “naked act of aggression” and called for a clear and unequivocal withdrawal of Iraqi forces. The United Nations Security Council condemned the invasion, and within days had imposed sanctions on Iraq.

Saddam soon began verbally attacking the Saudis. Saudi Arabia was the largest oil producer in the Middle East and a strategic U.S. ally. President Bush announced that the U.S. would launch a “wholly defensive” mission to prevent Iraq from invading Saudi Arabia. U.N. Resolution 678 gave Iraq until January 15, 1991 to withdraw from Iraq, authorizing the use of force if Iraq refused to comply. The United States began building an international coalition of 34 countries to support such actions which included many Arab states.

Operation Desert Storm began on January 17, 1991 with an aerial bombing campaign aimed at destroying Iraqi military and civilian infrastructures. On February 24 American ground forces entered Kuwait from their staging area in Saudi Arabia and began the process of liberating the country from Iraqi occupation. They were joined by Arab forces advancing from the East. On 27 February, Saddam ordered a retreat from Kuwait, and President Bush declared it liberated.

Coalition forces then entered Iraq. The Iraqi forces suffered massive casualties while coalition casualties were low. American, British and French forces moved within 150 miles of Baghdad before withdrawing. On February 28, President Bush declared a ceasefire stating that the objective of the liberation of Kuwait had been accomplished.

Some criticized the Bush administration for allowing Saddam Husain to remain in power, rather than pushing on to capture Baghdad and overthrow his government. But the American President was adamant that his military forces would not exceed the mandate of the United Nations, which merely called for the restoration of sovereignty to Kuwait.

Events Under Geroge W. Bush

A decade later, after the horrendous terrorist attacks on New York and the Pentagon in 2001 masterminded by al-Qaida, President George W. Bush, declared war on Iraq claiming that it was in league with al-Qaida and was equipping its members with weapons of mass destruction.

Saddam Husain’s links to al-Qaida were never proven, and the claims tying him to this militant religious group were highly suspicious. Saddam was not a religious person; he knew how to cite Islamic scripture in speeches to show his loyalty to Islam, but didn’t go beyond that. His policies showed a strong secularist rather than religious orientation, and the religious extremists of al-Qaida tended to regard him as a religious heretic and infidel like so many others whom they opposed.

Nor were any weapons of mass destruction ever found in Iraq despite exhaustive searches for them. It soon became apparent that these claims of Iraqi links with al-Qaida and weapons of mass destruction were simply a pretext offered by the Bush administration to rationalize the invasion of Iraq and depose Saddam. Some mused that the younger Bush had vowed to finish the job that his father had left undone, and remove Saddam Husain from power once and for all.

In March 2003 American forces began their massive “shock and awe” military strikes against Iraq. Once American forces had deposed Saddam Husain, they banned his ruling Ba’ath party, systematically dismantled the existing government, and disbanded the Sunni dominated military and police forces. As Fareed Zakaria notes,

[T]he administration needed to find local allies. It quickly decided to destroy Iraq’s Sunni ruling establishment and empower the hard-line Shiite religious parties that had opposed Saddam Hussein. This meant that a structure of Sunni power that had been in the area for centuries collapsed.

Historically there were tensions between these groups, but as writer and peace activist Raed Jarrar explains,

Iraqi Sunnis and Shiites managed to live in the same country for a long time without killing each other, and they lived in the same neighborhoods. They intermarried …

That was before the US intervention. The US destroyed that Iraqi national identity and replaced it with sectarian and ethnic identities after 2003. … [Y]ou can trace the beginning of this sectarian strife that is destroying the country, and it clearly began with the U.S. invasion and occupation.

Developments Under Nuri Kamal al-Maliki

Nuri Kamal al-Maliki was a Shi’a dissident in the early days of Saddam Husain’s regime and spent 24 years in exile after receiving a death sentence. He lived first in Damascas, Syria before moving to Tehran, Iran in 1990, and continues to have close ties with Iran and Syria.

Al-Maliki returned to Iraq aftr the fall of Saddam Husain, and became the deputy leader of the commission formed to purge Ba’ath party officials from the military and the government. He was elected to the transitional National Assembly in January 2005 and was appointed Prime Minister in May 2006.

Al-Malaki has been described as a militant sectarian who after his election began a systematic campaign to consolidate Shi’a rule and marginalize Sunni opposition. He is largely held to be responsible for a brutal civil war between the Shi’a and Sunni in Iraq from 2006 and 2009 which necessitated the “surge” in American troop levels to contain massive Sunni opposition to the U.S backed Shi’a rulers.

But efforts at containment had to be directed toward the Shi’a leadership as well. As one observer close to the situation has reported,

Time and again, American commanders … stepped in front of Maliki to stop him from acting brutally and arbitrarily toward Iraq’s Sunni minority. Then the Americans left, removing the last restraints on Maliki’s sectarian and authoritarian tendencies.

In the two and a half years since the Americans’ departure from Iraq in December 2011, Maliki has centralized power within his own circle, cut the Sunnis out of political power, and unleashed a wave of arrests and repression. … With nowhere else to go, Iraq’s Sunnis are turning, once again, to the extremists to protect them.

All the United States Forces shall withdraw from all Iraqi territory no later than December 31, 2011.

When President Barack Obama came to office, he realized that situation in Iraq was extremely unstable. He tried to negotiate a new agreement with al-Maliki allowing a contingent of American troops to remain on the ground to continue working with the Iraqi forces and assist the transition to peacetime rule. A necessary condition of this agreement was that U.S. troops would be granted immunity from prosecution for actions in Iraq. This clause is a standard part of Status of Forces agreements that the United States has with other countries. Al-Maliki refused to agree to this condition, and the talks collapsed. Obama was thus legally unable to extend the presence of US military forces in Iraq beyond the withdrawal deadline negotiated by President Bush.

The Current Situation

After enduring years of brutal oppression by Prime MInister al-Maliki and the Shi’ite military command, many Sunni Iraqis have become radicalized against the government. Some have come to see the ISIS militants as potential deliverers. Although most Iraqi Sunnis reject the extreme religious views of ISIS, many have nevertheless welcomed them as political liberators.

ISIS is an extremely well organized and well-funded military movement. ISIS commanders set up local governments wherever they go, collect taxes, and even offer social services.

They are not a“terrorist” group in the usual sense, but rather a well financed radical political movement with an organized administrative structure and an estimated $2 billion in assets.

The appaling irony is that before the American invasion of Iraq under President George W. Bush, there was no discernable presence of al-Qaida in Iraq. But after years of American soldiers targeting Iraqis in trying to defeat al-Qaida insurgents who made their way into the country, and after tens of thousands of Iraqi civilians being killed by American forces, many Sunnis have turned to al-Qaida sponsored groups for support.

Al-Qaida was not a direct threat to Iraq before American forces landed. Now, with the Americans gone, they are the largest threat the Iraqis have to deal with. And they may very well end up controlling a sizeable portion of the country and threaten Mideast stability for some time to come.

Republican politicians’ praise for Sgt. Bowe Bergdahl’s release from his Taliban captors in a prisoner exchange has quickly evaporated only to be replaced by unrelenting criticism of the White House’s role in his release. The conservative media (especially FOX News) has gone into overdrive in denouncing President Obama’s role in securing the release of America’s last prisoner of war in Afghanistan. They have even verbally attacked Bergdahl’s father, who has spent years trying to effect the release of his son.

The media have generally let the critics define the conversation around Sgt. Bergdahl and in doing so have let a number of controversial assertions go unchecked. Three main claims keep reappearing in these conversations.

#1: Obama negotiated with terrorists for Bergdahl’s release

One hears again and again the refrain that “America doesn’t negotiate with terrorists.” Fair enough. But exactly who was the negotiating party in this exchange? As Fred Kaplan pointed out earlier this week,

[T]he Taliban delegates, with whom U.S. officials have been negotiating in Qatar over the fate of Sgt. Bergdahl, are not terrorists. They represent a political faction and a military force in Afghanistan; they are combatants in a war that the United States is fighting. In other words, Bergdahl was not a “hostage” … . He was a prisoner of war, and what happened on May 31 was an exchange of POWs.

It’s an important distinction that easily gets lost in the conversation. Such prisoner exchanges happen all the time; this one was not exceptional. Kaplan continues,

The United States and practically every other nation that’s ever fought a war have made these sorts of exchanges for centuries. In recent years, American officers have turned over hundreds of detainees to the Afghan government, which in turn freed them in exchange for favors of one sort or another from the Taliban. During the Iraq war, American commanders frequently made similar swaps.

Similar prisoner exchanges took place during the Vietnam war. As Juan Cole notes,

As for the assertion that “America doesn’t negotiate with terrorists,” that is not entirely true. Mitchell Riess, in his book, Negotiating with Evil, states that America has a long history of negotiating with terrorists and rogue regimes that support terrorist activity. Here are a few examples from his book:

In 1970, President Richard Nixon pressured Israel, Switzerland, West Germany and Britain to release Palestinian prisoners after two airlines were hijacked by the Popular Front for the Liberation of Palestine.

During the Iran hostage crisis of 1979 to 1981, President Jimmy Carter agreed to unfreeze $8 billion in frozen Iranian assets after more than a year of negotiations with the Iranian revolutionaries.

In perhaps the most famous swap, after seven Americans were captured in Beirut, Lebanon, President Ronald Reagan agreed to send missiles to Iran in what became known as the Iran-Contra scandal.

President Bill Clinton’s administration sat down with Hamas in attempts to negotiate peace with Israel. His administration also worked directly with the Taliban nearly two decades ago on several occasions to see if the group would hand over Osama bin Laden and other al-Qaida leaders.

#2: Obama failed to inform Congress of the release of the Guantanamo detainees in advance, as required by law

Under Section 1035(d) of the FY14 NDAA, Congress must be given 30 days notice of any transfer of detainees from Guantanamo. Five prisoners were released from the detention facility at Guantanamo and handed over to officials in Qatar in exchange for Sgt. Bergdahl’s freedom. Under the conditions of their release, all five are to remain in Qatar for one year, after which both Americans and Qataris will continue to monitor them.

Sen. Saxby Chambliss, the ranking Republican on the Senate Intelligence Committee, complained that he did not receive any communication on the prisoner swap from the administration until Monday (June 2). And Republican House Leader, John Boehner, stated on Tuesday that

[the administration] has invited serious questions into how this exchange went down and the calculations the White House and relevant agencies made in moving forward without consulting Congress.

But Congress was consulted in advance. In fact, negotiations began nearly two and a half years ago to secure Sgt. Bergdahl’s release. As The Washington Postreported on Tuesday,

Obama administration officials first discussed with senior House Republicans the possibility of swapping five terrorism detainees from the U.S. detention facility at Guantanamo Bay, Cuba, in exchange for the release of Army Sgt. Bowe Bergdahl in late November 2011.

The possible prisoner exchange was discussed again during a briefing on Jan. 31, 2012, after senior House Republicans sent two letters to the Obama administration seeking more information on the possibility of the swap.

There had been little progress in the negotiations over the last year, but then an opportunity opened up and the President acted quickly. As he explained to the media earlier this week,

We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Bergdahl. We saw an opportunity, and we were concerned about Bergdahl’s health. We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity.

The Chairman of the Joint Chiefs of Staff, General Martin Dempsey, and National Security Counsel spokeswoman Caitlin Hayden have both defended the legality of the prisoner exchange as fully complying with US law.

#3: Bergdahl didn’t deserve to be rescued

Fox News reporter Jennifer Griffen suggested on Tuesday that Sgt. Bergdahl was a military deserter and possibly even a collaborator with the Taliban. Conservative politicians and commentators have repeated this meme. But the facts show a much more complicated situation. As Michael Tomasky reports,

Yes, he volunteered to join the Army, but only after he’d been turned down by the French Foreign Legion. Once on the ground in Afghanistan, he was a deeply disillusioned soldier. Shortly after his battalion took its first casualty, he emailed his parents a scathing indictment of the military and everything he saw around him.

Michael Hastings provides a much more detailed picture of these circumstances in his June 2012 profile on Bowe Bergdahl for Rolling Stone (summarized this week by Tim Dickinson).

Bergdahl grew up in rural Idaho, living “nearly off the grid.” He had a strict conservative Christian upbringing, was home schooled, and highly idealistic. One of the members of his unit in Afghanistan reports that Bowe thought of himself as a survivalist, claiming that “he knew how to survive with nothing” due to his upbringing in Idaho. At one point he said, “If this deployment is lame, I’m just going to walk off into the mountains of Pakistan.”

As his tour of duty dragged on, he became more and more disillusioned with American actions in Afghanistan, describing them as “disgusting.” He was particularly troubled by seeing an Afghan child run over by an American truck. He wrote to his parents saying,

I am sorry for everything here. These people need help, yet what they get is the most conceited country in the world telling them that they are nothing and that they are stupid … . We don’t even care when we hear each other talk about running their children down in the dirt streets with our armored trucks.

Dickinson reports that

After receiving an email from his father exhorting him to “OBEY YOUR CONSCIENCE,” Bowe slipped out of his unit’s barracks on June 30th, 2009. One man versus the wilds of Afghanistan, Bergdahl was equipped with just a knife, water, a digital camera and his diary. Barely 24 hours later, he’d be taken prisoner.

To say that Sgt. Bergdahl didn’t deserve to be freed from his captors flies in the face of a military tradition that is held to be sacrosanct: One doesn’t leave another soldier behind in the field.

Retired Gen. Stanley McChrystal, who commanded the war effort in Afghanistan at the time of Bergdahl’s June 2009 disappearance, stated this point clearly earlier this week.

“We don’t leave Americans behind. That’s unequivocal.”

It is possible that charges will still be laid against Sgt. Bergdahl. But McChrystal cautioned,

We’re going to have to wait and talk to Sgt. Bergdahl now and get his side of the story. One of the great things about America is we should not judge until we know the facts. And after we know the facts, then we should make a mature judgment on how we should handle it.

Chairman of the Joint Chiefs of Staff, General Martin Dempsey also stated his own personal position:

[T]he questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family.

We can expect the personal attacks on Sgt. Bergdahl to continue. And we should expect attacks on President Obama for his involvement in obtaining Bergdahl’s release to continue as well. Some are even calling for the President to be impeached over how he handled the prisoner exchange.

Conservative critics have worked quickly to turn the release of America’s last prisoner of war in Afghanistan from an occasion for national celebration into a platform for political condemnation. One can only imagine their vitriol if President Obama had abandoned Sgt. Bergdahl and let the last Afghanistan prisoner of war die in captivity. They are trying to have it both ways.

Edward Clayton grew up in the US but has lived in Canada for the last 4 decades. He is a long time peace activist and committed to issues of social justice and good government. He reports on Canadian, American, and global politics from a Canadian perspective.